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People v. Luna

Court of Appeals of Illinois, Second District

October 23, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ISMAEL G. LUNA, Defendant-Appellant

          Appeal from the Circuit Court of McHenry County. No. 12-CF-163. Honorable Sharon L. Prather, Judge, Presiding.

         Michael J. Pelletier, Thomas A. Lilien, and Christopher McCoy, all of State Appellate Defender's Office, of Elgin, for appellant.

         Louis A. Bianchi, State's Attorney, of Woodstock (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

         Burke and Spence, Justices concurred in the judgment and opinion.

          OPINION

Page 1145

          SCHOSTOK, PRESIDING JUSTICE.

          [¶1] Defendant, Ismael G. Luna, pleaded guilty in the circuit court of McHenry County to a single count of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2010)). In exchange for defendant's plea, the State nol-prossed other charges. However, there was no agreement as to defendant's sentence. The trial court sentenced defendant to an eight-year prison term. Through counsel, defendant moved for reconsideration of his sentence. The trial court denied the motion. On appeal, we granted defendant's motion for a remand to afford him the opportunity to file a new motion in accordance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). We did so because defendant's attorney failed to file the written certificate required by that rule. Our order directed the trial court to " hear and resolve [the] motion only after defendant's attorney files a certificate in strict compliance with Rule 604(d)." People v. Luna, No. 2-13-1035 (July 8, 2014) (minute order). On remand, defendant's attorney filed a Rule 604(d) certificate and stood on the previously filed motion to reconsider defendant's sentence. Defendant's attorney offered no new or additional argument on that motion. The trial court again denied the motion. In this appeal, defendant argues that the Rule 604(d) certificate that defense counsel filed on remand did not strictly comply with that rule. Thus, defendant asks that we remand the case once more. We affirm.

Page 1146

          [¶2] Rule 604(d) provides, in pertinent part, as follows:

" No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment. *** The trial court shall *** determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." Ill. S.Ct. R. 604(d) (eff. Feb. 6, 2013).

          It is well established that the attorney's certificate must strictly comply with the requirements of Rule 604(d). See People v. Janes, 158 Ill.2d 27, 35, 630 N.E.2d 790, 196 Ill.Dec. 625 (1994). If the certificate does not satisfy this standard, a reviewing court must remand the case to the trial court for proceedings that strictly comply with Rule 604(d). Id. at 33.

          [¶3] Here, in the certificate filed on remand following the earlier appeal, defendant's attorney stated, " I have consulted with the Defendant via written correspondence and telephone to ascertain his contentions of error, have reviewed the court file and report of proceedings of the guilty plea and sentencing, and have made any amendments to the motion to reconsider sentence necessary to adequately preserve any defects in those proceedings." Defendant argues that the certificate is deficient because, although counsel stated that he consulted with him to ascertain his " contentions of error," counsel did not expressly state that he ascertained defendant's contentions of error in defendant's sentence or the entry of his guilty plea.

          [¶4] Defendant relies primarily on our supreme court's decision in People v. Tousignant, 2014 IL 115329, 378 Ill.Dec. 796, 5 N.E.3d 176. In that case, the defendant moved for reconsideration of the sentence imposed after the acceptance of his guilty plea. Defense counsel filed a Rule 604(d) certificate stating that counsel " 'consulted with the Defendant in person to ascertain Defendant's contentions of error in the sentence imposed herein.'" Id. ¶ 35. The certificate was silent on the question of whether counsel ascertained the defendant's contentions of error in the entry of the guilty plea. Stressing that Rule 604(d) states that counsel must certify that he or she consulted with the defendant to " ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty" (emphasis added) (Ill. S.Ct. R. 604(d) (eff. Feb. 6, 2013)), the State argued that the use of the disjunctive " or" signified that counsel was not required to consult with the defendant both about sentencing errors and about errors relating to the entry of the defendant's plea. Tousignant, 2014 IL 115329, ¶ 9. Rather, in the State's view, the subject of the consultation depended on the type of postplea motion filed. Id. ¶ 10. The Tousignant court disagreed. The court observed:

" 'It is the settled law of this State that the words " or" and " and" will not be given their literal meaning ...

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